In these Terms and Conditions:
Claim includes all present and future claims (including but not limited to third party claims), suits, actions, demands, litigation, proceedings or threats whether:
(a) criminal, administrative or by way of arbitration or expert determination; or
(b) before any court, arbitrator, expert, tribunal, board commission, authority, agency, department or officer
Client means a client who has entered into an Agreement for the provision of Services
Agreement means an agreement between AVPartners and the Client containing the terms of AVPartners’ provision of Services for an Event and includes these Terms and Conditions
Equipment means the audiovisual, staging, production equipment owned, leased or provided for use at the Event by AVPartners
Event means an event or function at the Venue
Event Date means the date upon which an Event is to be held
Event Proposal means the proposal for Services
Event Times means the times between which an Event is to be held
Fees means AVPartners’ fees for the provision of Services for an Event as specified in the Agreement for that Event
GST means the Goods and Services Tax imposed under the GST Act
GST Act means the A New Tax System (Goods and Services Tax) Act 1999
Indemnified Parties means for each party, that party, its officers, employees, contractors and related entities (and their officers, employees and contractors), and, in the case of the Venue, its manager
Losses means all losses (including consequential losses), costs (including legal costs on a full indemnity basis), expenses, penalties and liabilities regardless of when or how these losses are suffered or incurred
Services means audiovisual, event staging, event production services and related services
Venue means the location at which the event is to be held
These Terms and Conditions will be considered to be accepted by the acceptance of the Event Proposal.
We will provide the Services to you in accordance with and subject to:
(a) the Event Proposal
(b) standard industry practices and standards
(c) any special conditions specified in the Event Proposal
(d) your reasonable instructions, and
(e) all reasonable instructions from the staff at the Venue
(f) these terms and conditions.
Unless we agree otherwise, we will not be obliged to provide to you any additional services that are not specified in the Event Proposal. If we agree to provide you with additional services, the Fees will be increased to include our fees and expenses for those additional services.
You acknowledge that we may engage contractors to provide all or part of the Services.
We reserve the right to terminate the provision of all or any part of the Services, at any time without notice and without any liability to you or any other person if we consider in our absolute discretion that the provision of the Services for the Event may:
(a) jeopardise the health, safety or welfare of any person
(b) cause damage to property, or
(c) cause us to be in breach of any laws.
You must, and must ensure that your employees and all other persons at the Event, only use our audiovisual equipment or the audiovisual equipment at the Venue:
(a) in accordance with all reasonable instructions from us or the staff of the Venue
(b) only for the purposes for which it was intended, and
(c) with all reasonable care.
You are liable for any loss or damage to the Equipment, which is caused by you, your employees, or any person at the Event.
Without limiting our rights, you must within seven days of receiving a demand from us or the Venue operators either (as specified in the notice):
(a) pay us the cost of repairing the damaged Equipment, or
(b) pay us the full replacement cost of the Equipment if it is lost or if we determine it is irreparably damaged.
You must pay the Fees in accordance with this clause 5.
(a) Unless we otherwise advise you in writing, you must pay all Fees and other amounts payable by you under this Agreement to the Venue operator in accordance with the invoice issued to you by the Venue operator.
(b) Despite clause 5.2(a), we may recover Fees and any other amounts payable by you under this Agreement directly from you.
The Fees specified in the Event Proposal are estimates only and may change:
(a) if the Event Date changes
(b) if you request us to provide different services to those specified in the Event Proposal
(c) if the Event runs for longer than the Event Times, or if the Event Times change, or
(d) if you and us agree for any reason.
If you do not pay any deposit or part payment by the due date for that payment, we may immediately terminate this Agreement for the provision of Services by written notice to you with no liability to you or any other person.
You must reimburse us for all reasonable expenses and costs (including but not limited to legal costs and debt recovery costs) incurred by us or the Venue operators, or for which we or the Venue operators are liable, in recovering any and all overdue amounts payable under this Agreement.
All payments you are required to make under this Agreement will only be deemed to be received when cleared funds are received by us or the Venue operator (as applicable). You must make all payments in full and without any set-off or abatement.
We may charge interest at the rate of 10% per annum (calculated daily) on any overdue amounts up until the date that payment is received.
We may set-off any amounts you are required to pay under this Agreement (including cancellation fees) against any amounts that you have already paid to us.
Subject to clause 6.2, you may only cancel the Services by written notice to us.
If you cancel the provision of the Services at any time after you have signed the Event Proposal, you must at the time of cancellation pay us an amount equal to:
(a) the proportion of the Fee imposed by the Venue on you pursuant to the Venue’s terms and conditions;
(b) all non-refundable or non-cancellable costs or liabilities incurred by us or the Venue operator which relate to the Services or the event (such as the hire of equipment or the engagement of personnel), and
(c) any costs recoverable under clause 5.5.
Expressions in this clause which are not defined in this Agreement but which are defined in the GST Act have the same meaning as in that Act.
Unless otherwise expressly stated, all amounts, prices, values or other sums payable or to be provided under this Agreement are exclusive of GST.
If GST is payable on any supply made under this Agreement:
(a) the recipient of the taxable supply must pay to the supplier an amount equal to the GST payable on the taxable supply in addition to and at the same time as payment for the taxable supply is required to be made under this Agreement, and
(b) the supplier must give the recipient a tax invoice for the taxable supply.
You warrant to us that:
(a) you are able to enter into and fulfil your obligations under this Agreement
(b) the person signing the Event Proposal has full power and authority to enter into this Agreement on your behalf, and
(c) you are not entering into this Agreement on the basis of any representations, promise or undertaking provided by us or on our behalf, unless that representation, promise or warranty is expressly stated in this Agreement or the Event Proposal.
You warrant to us that you have, and acknowledge that you are solely responsible for ensuring, that you and any applicable third party have appropriate rights and permissions to use any third party intellectual property rights (including rights in patents, designs, copyright, know how, performers rights, moral rights, trade secrets, confidential information, trademarks, service marks, circuit layouts, goodwill and all other similar rights) as part of the Event, including in music, film, performances, and in graphic or printed matter.
The Venue operators may require you to hold public liability or other insurance for the Event. We may or may not hold insurance in respect of the provision of part or all of the Services for the Event. Any insurance we hold will not extend to your own liability in respect of the Event. You warrant that you have made your own enquiries regarding your public liability exposure and other risks arising from the Event and whether insurance to cover such risks is desirable.
(a) We will not be liable for, and you indemnify and will keep us, our officers, employees and contractors (Indemnified Parties) indemnified against any and all Claims or Losses arising from your negligence, misconduct and/or breach of any of your obligations or warranties under this Agreement.
(b) In this clause, “Claims” includes all present and future claims (including but not limited to third party claims), actions, demands, proceedings or threats brought against any of the Indemnified Parties.
(c) In this clause “Losses” includes consequential losses, costs (including legal costs on a full indemnity basis), expenses, penalties and liabilities whatsoever and whenever incurred or suffered by any of the Indemnified Parties.
We may immediately terminate this Agreement and the provision of Services:
(a) in accordance with any express right in this Agreement
(b) if you are in breach of any of your obligations or warranties under this Agreement, subject to any right to rectify we may give you if the breach is capable of being remedied
(c) you have a receiver, receiver and manager, trustee in bankruptcy, administrator liquidator or controller appointed, or
(d) we determine or suspect on reasonable grounds that you are unable to pay your debts as and when they fall due.
If we terminate the provision of Services under clause 10.1, clause six will apply as if you had cancelled the provision of the Services.
Termination of this Agreement does not prejudice any of our rights or entitlements which have accrued before termination.
All terms, conditions and warranties implied into this Agreement by statute, common law or otherwise, and all liability for any direct, indirect or consequential loss (including without limitation, any loss of profits, loss of revenue or loss of opportunity) arising in any way (including, without limitation, as a result of our negligence), are excluded from this Agreement except where to do so would contravene any statute or cause any part of this Agreement to be void or unenforceable.
To the extent that we cannot lawfully exclude liability under clause 11.1, our liability relating to or arising under this Agreement or from the Services is limited to (at our option):
(a) in the case of goods, replacing or repairing the goods, or paying the cost of having the goods replaced or repaired, and
(b) in the case of services, re-supplying the services, or paying the cost of having the services resupplied.
To the extent permitted by law, any other liability arising from the Event or relating to this Agreement is your responsibility.
If we are prevented from or delayed in complying with an obligation under this Agreement by an event beyond our reasonable control (including acts of God, acts of war, breakdown or destruction of plant and equipment, strike or lock-out) performance of that obligation is suspended during the time and only to the extent that compliance is prevented or delayed. We will not be liable to you or any third party for any loss, damage, cost or expense incurred as a result of or arising from such delay or failure to comply.
In relation to its subject matter this Agreement:
(a) constitutes the entire agreement between the parties, and
(b) supercede any previous representations, understandings or agreements.
Unless specifically stated to the contrary, in this Agreement:
(a) any failure to enforce or a delay in enforcing any right under this Agreement does not constitute a waiver of those rights, and
(b) a partial exercise of a right does not preclude any further exercise of that or any other right.
If any provision of this Agreement is held to be void, prohibited, invalid or unenforceable in any jurisdiction:
(a) that provision is ineffective to the extent of the prohibition, invalidity or unenforceability in that jurisdiction
(b) the validity or enforceability of that provision is not affected in any other jurisdiction, and
(c) the remaining provisions of this Agreement are not affected.
The person who signs the Event Proposal on your behalf declares that he or she has no notice of the revocation or suspension of the authority by which that person signs the Event Proposal.
You may only assign any of your rights or obligations under this Agreement with our prior written consent.
We can assign any of our obligations under this Agreement, or novate this Agreement, on written notice to you.
You must do everything reasonably necessary to give effect to this Agreement and the transactions contemplated by it, including the execution of documents.
This Agreement is governed by the law in force in the State or Territory in which the service is provided and the parties submit to the nonexclusive jurisdiction of the courts of or exercising jurisdiction in the State or Territory in which the service is provided.
The parties must use their best endeavours to cooperatively resolve a dispute arising from this Agreement.
AVPartners may photograph, film or record your event. We reserve the right to use this media for promotional purposes.
Where two or more parties have an obligation or liability under this Agreement, the obligation or liability is joint and several.
Clauses 3.4 to 9 (inclusive), 10.2, 10.3 and 11 to 13 (inclusive) survive the completion of the Services or the earlier termination of this Agreement.
If there is any inconsistency between the Event Proposal and these terms and conditions, the Event Proposal will prevail to the extent of the inconsistency.
In this Agreement, unless the context indicates a contrary intention:
(a) a reference to:
(i) an individual or person includes a corporation, partnership, venture, association, authority, trust, state or government
(ii) a document including this Agreement, is to that document as amended, novated, renewed, substituted or supplemented at any time
(iii) dollars or $ is to an amount in Australian currency, and
(iv) time is to time in the State or Territory in which the service is provided, Australia
(b) All capitalised expressions used in these terms and conditions have the meaning given to them on the front page.
(c) where an expression is defined, another part of speech or grammatical form of that expression has a corresponding meaning
(d) headings are for convenience only and do not affect the interpretation
(e) including and similar expressions are not to be treated as words of limitation
(f) an obligation not to do something includes an obligation not to cause and not to permit it to be done
(g) where consent or approval is required under this Agreement the requirement will mean the prior written consent or approval, and
(h) this Agreement is not to be construed against us because we were responsible for the preparation of this Agreement.